Simpson v Gatacre [1992] NSWLEC 18 (3 April 1992)

[1992] NSWLEC 18

Land and Environment Court

of New South Wales

CITATION:	Simpson v Gatacre [1992] NSWLEC 18 (3 April 1992) [1992] NSWLEC 3
PARTIES:	Simpson v Gatacre
FILE NUMBER(S):	50307-50310 of 1990
CORAM:	Stein J
KEY ISSUES:	:-
LEGISLATION CITED:	Soil Conservation Act 1938
CASES CITED:	Simpson v. Love (Unreported, 23 October 1991)
DATES OF HEARING:
DATE OF JUDGMENT:	04/03/1992
LEGAL REPRESENTATIVES:

JUDGMENT:

HIS HONOUR: On 2 March 1992 I found the defendant, William Michael Gatacre, guilty of four breaches of s21C of the Soil Conservation Act 1938 as amended. I have since heard evidence and submissions in mitigation of penalty. To save unnecessary repetition of the facts I will append my earlier Judgment. The offence is causing a number of trees to be cut down in January 1989 on protected land on the northern bank of the Edward River at "Woorooma" property, Moulamein. Each summons nominates the breach of a particular condition attached to an authority issued to the defendant under s21D of the Act. One further summons (50311/90) has been withdrawn and dismissed.

The conditions breached are:-

Condition 3 which provides "Trees which are less than 60 cm. in diameter at a height of 1.3 metres above the ground shall be retained."

Condition 7 provides "In areas other than tree plantations not more than 50% of trees which are greater than 60 cm. in diameter at a height of 1.3 metres above the ground shall be destroyed. However, a minimum of one such tree, large crowned where possible, shall be retained every 15 metres along each side of the watercourse."

Condition 9 provides "In felling, trees which are unable to be directed away from the river or lake may be felled only with the approval of the inspecting officer."

Condition 10 provides "Any debris falling into the river or lake shall be removed immediately, without damage to the bank and adjacent trees."

It is common ground that the maximum penalty for a breach of s21C, as at the time of the offences, was $10,000. The relevant protected land is a strip adjacent to the river to a distance of 10m on each side of the bank. According to the evidence of Mr. David Davis, a district soil conservationist with the Soil Conservation Service, some 39 trees were cut down by the feller, Mr. Rodney Love, in a 500m stretch of protected lands in breach of the authority. The series of photographs taken by Mr. Davis bear graphic witness to the conduct.

On behalf of the defendant, Mr. Donaldson makes a number of submissions in mitigation of penalty. These may be shortly summarised:-

* Because of the defendant's interpretation of the conditions a number of the 39 trees could be reasonably excluded from consideration - especially those in the "grey area" between 15 to 20m from the river. These trees can be identified from the affidavit of Mr. Davis and the photographs. In the total context of the felling operation not many trees were involved.

* The defendant gave no order to the feller that trees be cut down in the direction of the river nor that a gap of more than 15m be created between large crowned trees.

* The defendant's involvement in the offence was less culpable than the feller.

* The logging operation was generally carried out in a careful manner.

* The defendant is the manager of the property and an employee of the property owner. He had nothing to gain from the transaction.

* No previous complaints about his conduct had been made by the Prosecutor.

* The defendant has been a station manager since 1973 and has been the holder of many permits and licences under various statutes. He has never been in breach before and has no prior convictions.

I accept the above mitigating factors as relevant to the assessment of penalty save one. I do not accept the submission that the defendant is less culpable than the feller. Mr. Gatacre was the holder of the authority. He should have ensured that the feller obeyed the conditions of the licence. In this he failed, as the facts as found by me reveal. Indeed, it may be seen from my reasons for Judgment that I felt that I could place little reliance on his evidence.

Mr. Gatacre's stance was that compliance with the authority was not his responsibility, but that of the feller. However, it is plain that the defendant was in a position of management and control of the protected lands in question. He engaged the fellers to take timber from the property, including its protected lands. He obtained the authority to destroy trees on the protected land and attended a detailed briefing and inspection by Mr. Davis wherein the conditions were comprehensively explained.

As I said before I have no doubt that the defendant participated in the decision as to what trees were to be cut down in the manner explained in my earlier Judgment. This was essentially because his interpretation of the conditions varied from the explanation by Mr. Davis.

On the issue of environmental damage it may be accepted that, in the context of the size of the property, the total tree clearing exercise involved, as well as the length of protected lands, only a relatively few trees are involved. However, the affidavit of Colin Short, a regional director of soil conservation, makes it apparent that the purpose of the conditions in question is to ensure that the environmental damage of logging operations are minimised in proximity to the river and for very good reason. Each of the four conditions had a particular environmental purpose, as explained by Mr. Short. For example, paragraph 5 refers to the significance of Condition 7. In part Mr. Short says:-

"expert evidence is available to state that at least 24 trees less than 60cm diameter at 1.3 metres above ground level were destroyed. At least 10 trees were destroyed which created a gap of greater than 15 metres between trees with a diameter greater than 60cm at 1.3 metres above ground level.

A breach of this degree of this condition could have a serious effect on the number of habitat sites, and the cumulative effect along the rivers at an application rate of 60 kilometres per year would result in an accumulating serious effect."

I accept that a degree of environmental harm resulted from the offences. The charges were heard together by consent. While four separate conditions have been breached I think it is fair to regard the matter in its totality as one incident involving four separate breaches. For the same reasons as given by Bignold J. in Simpson v. Love (Unreported, 23 October 1991) it seems appropriate to regard the offences as integrally related. Likewise, I find it difficult to rank the seriousness of each of the breaches. It follows that it is appropriate to impose the same penalty with respect to each summons.

Looked at in their totality I cannot but view the offences in a serious light. However, I take account of the mitigating circumstances discussed earlier. All in all I am driven to the conclusion that I should impose a penalty of $2,500 in respect of each of the four offences.

Orders

1. The defendant is convicted of each offence charged.

2. The defendant is fined the sum of $2,500 with respect to each summons, a total sum of $10,000, to be paid to the Registrar of the Court within 4 months.

3. The defendant is ordered to pay to the Prosecutor his costs as agreed or taxed, such sum to be paid within 4 months of agreement or taxation.

4. Exhibits may be returned.